Australia: WorkChoices Update

During the ALP National Party Conference, the ALP released further details of its Industrial Relations Policy, Forward with Fairness. The Policy document can be downloaded in full on the ALP website www.alp.org.au.

Key proposed reforms are as follows:

• Abolition of AWAs;
• Abolition of current Australian Industrial Relations Commission, Office of the Employment Advocate, Office of Workplace Services and the Australian Fair Pay Commission;
• Creation of a new body called "Fair Work Australia" which is intended to be a "one stop shop" for all industrial relations needs. It would appear, however, that the ALP recognises the need to have a discrete judicial arm to this body;
• Fair Work Australia would have the following functions:
• Providing information and advice to Australian employers and employees;
• Facilitating collective bargaining and ensuring good faith bargaining;
• Reviewing and approving collective agreements;
• Resolving unfair and unlawful dismissal claims;
• Assisting parties resolve workplace grievances;
• Monitoring compliance and ensuring the application of workplace laws, including minimum conditions, awards and agreements;
• Overseeing mandatory secret ballots and enforcing Federal Labor’s tough industrial action laws;
• Determining minimum wages and publishing pay scales;
• Reviewing Federal Labor’s simplified industry awards; and
• Regulating registered industrial organisations.

On 4 May 2007, the Prime Minister announced amendments to the WorkChoices Legislation and particularly regarding workplace agreements. The changes took effect on 7 May 2007 for all workplace agreements (e.g. AWAs and collective agreements) lodged with the Office of the Employment Advocate (to be renamed the "Workplace Authority").

Workplace agreements lodged on or after 7 May 2007 will be subject to the Fairness Test. The test will apply to agreements lodged for employees who would otherwise have been entitled to the benefit of protected award conditions, such as penalty rates under an industrial award, and are earning less than $75,000 per year.

An agreement will pass the Fairness Test where the Workplace Authority (the OEA) is satisfied that fair compensation has been provided for modifying or removing any or all protected award conditions. These conditions are:

• Penalty rates including for working on public holidays and weekends
• Shift and overtime loadings
• Monetary allowances
• Annual leave loadings
• Public holidays
• Rest breaks, and
• Incentive-based payments and bonuses

All workplace agreements must still be lodged with the Workplace Authority (the Office of the Employment Advocate) and, as before, they will start to operate on lodgement.

Swaab was recently named winner 'Best Law Firm in Australia (Revenue < $20m)' at the 2007 BRW-St George Client Choice Awards.

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